People ex rel. E.A.M. v. D.R.M.

• Decision Date: 12 September 2022
• Docket Number: 22SC29
• Citation: 2022 CO 42
• Parties: The People of the State of Colorado, v. D.R.M. Respondent In the Interest of a Minor Child: E.A.M. Petitioner
• Court: Colorado Supreme Court

2022 CO 42

The People of the State of Colorado, In the Interest of a Minor Child: E.A.M. Petitioner v. D.R.M. Respondent

No. 22SC29

Supreme Court of Colorado, En Banc

September 12, 2022

In this dependency and neglect case, the supreme court addresses the notice provisions in the Indian Child Welfare Act ("ICWA"). Those provisions apply when the court knows or has reason to know that an Indian child is involved in a child custody proceeding, including a dependency and neglect proceeding. Whether the court "knows" that a child is an Indian child is fairly straightforward. Whether the court has "reason to know" that a child is an Indian child -not so much.

The supreme court now holds that mere assertions of a child's Indian heritage (including those that specify a tribe or multiple tribes by name), without more, are not enough to give a juvenile court "reason to know" that the child is an Indian child. Instead, such assertions trigger the due diligence requirement in Colorado's ICWA-implementing statute, § 19-1-126(3), C.R.S. (2021).

Because the juvenile court correctly found that it didn't have reason to know that E.A.M. is an Indian child, it properly directed the Denver Human Services Department to exercise due diligence in gathering additional information that would assist in determining whether there was reason to know that E.A.M. is an Indian child. Accordingly, the supreme court reverses the division's decision to vacate the juvenile court's termination judgment. The matter is remanded to the court of appeals for further proceedings consistent with this opinion.

Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 21CA381

Attorneys for Petitioner:

Kristin M. Bronson, Denver City Attorney Laura Grzetic Eibsen, Assistant City Attorney Denver, Colorado

Attorney for Minor Child:

Josi McCauley, Guardian ad litem Fort Collins, Colorado Attorneys for Respondent:

The Morgan Law Office Kristofr P. Morgan Colorado Springs, Colorado

Law Office of Dailey &Pratt, LLC Joel M. Pratt Colorado Springs, Colorado

Attorney for Amicus Curiae Colorado Office of Respondent Parents' Counsel:

Zaven T. Saroyan Denver, Colorado

Attorneys for Amici Curiae Southern Ute Indian Tribe and Ute Mountain Ute Tribe:

Indian Law Clinic, Michigan State University College of Law Kathryn Fort East Lansing, Michigan

Van Ness Feldman, LLP Laura Jones Denver, Colorado

JUSTICE SAMOUR delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE MARQUEZ, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE HART, and JUSTICE BERKENKOTTER joined.

OPINION

SAMOUR, JUSTICE

¶1 No resource "is more vital to the continued existence and integrity of Indian tribes than their children," and because the United States has a special relationship with Indian tribes and a responsibility to Indian people, it "has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe." 25 U.S.C. § 1901(3) (2018). This compelling declaration was made by Congress more than four decades ago as it adopted the Indian Child Welfare Act ("ICWA"). Congress found "that an alarmingly high percentage of Indian families" were being "broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies." 25 U.S.C. § 1901(4). More specifically, Congress was concerned that the states, in exercising jurisdiction over Indian child custody proceedings through administrative and judicial bodies, were often failing "to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families." 25 U.S.C. § 1901(5). Congress had become increasingly troubled "over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989).

¶2 To combat these social maladies, ICWA set "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes." 25 U.S.C. § 1902 (2018). The newly minted standards sought to ensure that the placement of Indian children in foster or adoptive homes would reflect "the unique values of Indian culture" while providing "assistance to Indian tribes in the operation of child and family service programs." Id.

¶3 ICWA applies to state dependency and neglect proceedings involving Indian children. People in Int. of K.C. v. K.C., 2021 CO 33, ¶ 24, 487 P.3d 263, 269. Under ICWA, when the court "knows or has reason to know" that a child who is the subject of a dependency and neglect proceeding is an Indian child, it has an obligation to ensure that the petitioning party (i.e., a social services department) gives notice of the proceeding to any identified Indian tribes. 25 U.S.C. § 1912(a) (2018).

¶4 Whether the court "knows" that a child is an Indian child is a fairly straightforward inquiry. But whether the court has "reason to know" that a child is an Indian child is a different kettle of fish. The latter inquiry has caused much consternation among judges and lawyers. And it's the one we grapple with today. As relevant here, the court has reason to know that a child is an Indian child when "[a]ny participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child." 25 C.F.R. § 23.107(c)(2) (2022). "If the court receives information that the child may have Indian heritage," it must direct the petitioning party "to exercise due diligence in gathering additional information that would assist the court in determining whether there is reason to know that the child is an Indian child." § 19-1-126(3), C.R.S. (2021).

¶5 In this dependency and neglect case, the juvenile court terminated Mother's parental rights with respect to E.A.M. Mother appealed, complaining that the court had failed to comply with ICWA by not ensuring that the petitioning party, the Denver Human Services Department ("the Department"), had provided notice of the proceeding to the tribes that she and other relatives had identified as part of E.A.M.'s heritage. The Department and the child's guardian ad litem responded that the assertions of Indian heritage by Mother and other relatives had not given the juvenile court reason to know that the child is an Indian child. Rather, they maintained, such assertions had merely triggered the due diligence requirement in section 19-1-126(3), and here, they continued, the Department had exercised due diligence. A division of the court of appeals agreed with Mother, vacated the termination judgment, and remanded with directions to ensure compliance with ICWA's notice requirements. People in Int. of E.M., 2021 COA 152, ¶ 1, 507 P.3d 113, 114. We now reverse.

¶6 We hold that mere assertions of a child's Indian heritage (including those that specify a tribe or multiple tribes by name), without more, are not enough to give a juvenile court "reason to know" that the child is an Indian child. Instead, such assertions trigger the due diligence requirement in section 19-1-126(3). Here, the juvenile court correctly found that it didn't have reason to know that E.A.M. is an Indian child. Accordingly, it properly directed the Department to exercise due diligence in gathering additional information that would assist in determining whether there was reason to know that E.A.M. is an Indian child.

¶7 Just what constitutes due diligence in the context of section 19-1-126(3) isn't before us. Although the juvenile court ultimately determined that the Department had satisfied the statutory due diligence requirement, we pass no judgment on the matter because the issue isn't properly teed up and hasn't been fully briefed. And because we reverse the division's decision to vacate the juvenile court's termination judgment, we also do not reach the question of whether the division erred in departing from decisions by other divisions when it chose to vacate the judgment instead of remanding on a limited basis for further determinations concerning ICWA compliance.^[1] We remand, however, to allow the division to consider Mother's outstanding claim, which alleges that the Department failed to undertake reasonable efforts to rehabilitate her.

I. ICWA and Colorado's ICWA Statute

¶8 Before reciting this case's facts and procedural history, we examine ICWA and Colorado's ICWA-implementing statute to place in context what occurred in the juvenile court.

A. Background

¶9 Congress passed ICWA in 1978 to protect and preserve Indian tribes and their resources, as well as to safeguard Indian children who are either members of an Indian Tribe or eligible for such membership. People in Int. of M.V., 2018 COA 163, ¶ 10, 432 P.3d 628, 632. ICWA establishes minimum federal standards for child custody proceedings involving Indian children. Id. We've made clear that ICWA "recognizes that Indian tribes have a separate interest in Indian children, distinct from, but equivalent to, parental interests." B.H. v. People in Int. of X.H., 138 P.3d 299, 303 (Colo. 2006).

¶10 Congress authorized the United States Department of the Interior ("DOI") to promulgate rules and regulations necessary to effectuate ICWA. 25 U.S.C. § 1952 (2018). In 1979, a year after ICWA came into existence the DOI, through the Bureau of Indian Affairs ("BIA"), issued a set of ICWA guidelines for state courts. See...